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©Chris Slane

MPs expenses: understanding an amendment to FOI law

The “Freedom of Information (Parliament and National Assembly for Wales) Order 2008 No. 1967” lies at the heart of the MPs’ expenses row. Watching the saga unfold (as many did with “shock and awe”), I thought I could not be the only person on the planet who wondered why the redaction was so heavy, even to the extent of blacking out details that hitherto had been made available under FOIA.

A little research revealed that the above Statutory Instrument provides the answer as it contains an “exemption” (if that is the correct term) for the House of Commons (and Lords). The “exemption” applies to: 

    “(a) information relating to any residential address of a member of either House of Parliament,

    (b) information relating to travel arrangements of a member of either House of Parliament, where the arrangements relate to travel that has not yet been undertaken or is regular in nature,

    (c) information relating to the identity of any person who delivers or has delivered goods, or provides or has provided services, to a member of either House of Parliament at any residence of the member,

    (d) information relating to expenditure by a member of either House of Parliament on security arrangements”.

So when Parliament decided to publish its documents, it could take account of the above. Note that paragraph (a) accounts for the total blackout of the all address information from Council Tax Bills etc; paragraph (b) relates to redactions of details of travel destinations to the MPs constituency (which, of course, is in the public domain anyway); and paragraph (c) relates to redactions in relation to the provision of important Parliamentary services such as “moat cleaning” or “duck housing”.

However, the clever wheeze, so to speak, is the “exemption” itself. It has been implemented into FOIA not as an absolute or qualified exemption, but as part of the definition of “public authority” in Schedule 1 of the Act. Thus the House of Commons (and Lords) are public authorities, but not in relation to the information falling into the categories above.

Section 1 of FOIA states that “Any person making a request for information to a public authority is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request, and if that is the case, to have that information communicated to him”.  So if a body receiving a request for information is not a “public authority”, then the request falls at the first hurdle.

In other words, all FOI requests will fail because they cannot meet the threshold required by Section 1. All the Information Commissioner can do is check whether the information falls within the four categories identified – then go home. There is no effective complaints procedure, no internal review, no appeal, no Decision Notice, no Tribunal etc etc – “no nothing” as an Eastender’s cast member might say.

What is more, if there is to be a change in transparency, that change must be made to the FOIA law itself. In other words, MPs have to change the law to include themselves in the FOI Act. Even with the all the brouhaha surrounding the MPs’ saga, this prospect is the FOI equivalent of “turkeys voting for Christmas”!  If I were advising FOI campaigners, the repeal of that SI would be the focus.

For more information on the MP's expenses visit our Downloads page.

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©Chris Slane

Government want powers over use and disclosure of DNA, CCTV and ANPR data

The Policing and Crime Bill currently before the House of Lords provides for wide ranging powers in relation to the use and retention of personal data, in particular CCTV and Automated Number Plate Readers (ANPR) images, and personal data derived from DNA samples. Did you know about this? - Probably not. This is because the Government has explained the purpose of the clause in terms of the loss of its ECHR case relating to the national DNA database (i.e. S and Marper v The United Kingdom). The Government has not explained why it wants these powers to also apply to CCTV and ANPR.

In outline, the Government is seeking to acquire extensive powers to use and retain personal data in these sensitive areas. Such powers are likely to significantly reduce the protection afforded by the Data Protection Act, because if the powers stipulate that such personal data are to be retained for Z years for purposes A, B and C, then these purposes and retention periods are lawful.

These provisions have also been introduced in advance of a promised public consultation on DNA retention; does this suggest that the Government might know the outcome of that consultation before the closing date? There never has been a public consultation over the use of CCTV or ANPR images – so the fact that the public have not been provided detailed information on why the Government is proposing that extensive powers should apply to these images is not helpful. Additionally, the fact that secondary legislation is to be used in these areas ensures that, when the necessary detail becomes known, there will be very limited Parliamentary scrutiny.

In my view, this lack of justification or scrutiny is unacceptable – something that the Joint Committee of Human Rights, the Home Affair Select Committee and Constitution Committee have repeatedly echoed in its reports on surveillance and privacy.

The Government also propose a weak system of regulation. This arises because the powers in the Bill allows the Home Secretary to control the functions and reporting structure of the regulator and to have jurisdiction over what is regulated even though the Home Secretary is also politically responsible for the public bodies that are subject to regulation.

My own view is that such a system of regulation is inherently flawed as it does not embrace two basic principles:

1. The regulator has to be totally independent from the Government bodies performing the interference. This means any system of regulation cannot report to the Home Secretary, for instance, if the Home Secretary has political responsibility for those bodies.

2. The regulator’s powers with respect to interference should be proportionate (in a mathematical sense) to the degree of interference. At the moment, there is an inverse proportionality relationship: the greater the ability to interfere, (for example, national security), the weaker the system of regulation.

In summary, the provisions in this Bill propose a situation that is akin to that which would arise if Count Dracula were given the responsibility for policy at the National Blood Transfusion Service and was seeking powers to appoint his own auditors to make recommendations as to the distribution, quantity and quality of the blood supply.

For more details, see our policy document download “Evidence to JCHR re powers in Police and Crime Bill – 2009” on amberhawk.com. 

Procedural comment on the ID Cards debate

The MPs expenses scandal has awoken a debate on “what Parliament is for?”. It had always supposed it was to scrutinise legislation, but it is clear to me that this does not happen; the executive branch of government has control of the legislature and can whip the votes in favour of what it wants. An elected second chamber, now the policy of this Government, runs the risk of extending the Government’s control of Parliament; do you think that the party machines will put up “party rebels” for election? That is why, bizarrely, the application of Darwinian random selection via hereditary genes provides for more independent thought in political terms.

The lack of scrutiny affects how Parliament covers privacy matters, and it first entered my consciousness when I produced my written evidence for the Home Affairs Select Committee’s inquiry into the Surveillance Society in 2007. I was concerned that a decision to use the ID Card database as a general information resource for the public sector was not scrutinised by Parliament.

For me, seeing the evidence unfurl was a wake-up call; it showed how a Government could deliberately avoid scrutiny on an issue as mundane as “public administration”. My evidence shows that Government told Parliament one thing but behind the scenes it did another and it ignored advice from leading Civil Servants to inform Parliament. I have identified several Ministerial statements to Parliament that struggle to pass the minimum threshold of being “economical with the truth”, and show that a comprehensive Written Statement about the change of use of the ID Card’s database was delayed 9 months until the ID Card Act could not be scrutinised further.

If the politics of accountability, scrutiny and debate over public policy cannot be channelled through a Parliamentary process on a subject as mundane as "efficient public administration", how can Parliament assume it has properly scrutinised any other governmental policy?  There is wide-spread concern that Parliament is no longer the focus of political and policy debate; my evidence goes a long way to illustrate one reason why this is the case.

Readers who are interested in this aspect should access the downloads available on amberhawk.com (entitled “MPs expenses - 2009”).

Does data loss cause damage or distress?

If you are seeking an answer to the above question why not just ask our MPs. At the heart of the long running MP expenses saga is the fact that a data controller (the House of Commons) or its data processor did not supervise its staff. Someone from within the data processor or data controller was able to make a copy of all the unredacted expenses and sell them to the Daily Telegraph. If all the rumours one sees in the press are true, the powers that be still don’t have a clue as to the identity of who made that fateful copy – so there is no audit trail of access.

The interesting side question for data protection aficionados is whether a section 55 offence has been committed? As the defence includes the argument that in the particular circumstances of the case “the obtaining, disclosing or procuring was justified as being in the public interest”, then it does appear that the person who gave the disks to the Telegraph could make this defence.
However, I think that this public interest argument is much diminished if a large fee was paid by the Daily Telegraph to that individual. If I were that individual, I would not want my defence to the S.55 offence to depend on an argument on the lines of: “I acted in the public interest at all times, and the £300K I received in payment was purely an incidental consideration”.

On the other hand, the Daily Telegraph appears to be in a different position. Section 78 of the Criminal Justice and Immigration Act 2008 provides for a defence to the Section 55 offence for purposes of journalism and other Special Purposes. The section states that the offence does not apply to the Special Purposes, where the personal data has been obtained “with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”.

In other words, it does not matter how the newspaper obtained the expenses disks. I therefore conclude that the Daily Telegraph is on safe grounds in relation to the S.55 offence but not the member of staff who gave them the disks for money. If there was money exchanged, that staff member would be unwise to “flash the cash” and draw attention to himself!